Incarceration Nation

Why Does California Need an Innocence Commission?

By Kevin Cooper

Throughout the very tortured history of the Divided States of America, the so-called criminal justice system within it has been anything but just to its minority peoples.

It has, however, always been more than just to its majority people who called themselves white. Even before the 1857 Dred Scott decision where Roger B. Taney, Chief Justice of the United States Supreme Court wrote in part that: “Negroes were beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect.”

We African/African American people, Native American people, and all other non-white people had to not just live under those realities but had to die by them as well. This is especially true when it came to this country’s use of the death penalty in all of its various and horrific forms.

Its use of prisons/penitentiaries/plantations by way of the criminal justice system and its Roger B. Taney variety judges in every courthouse across this country led to a country that not only believed in, but also practiced locking up and executing its minority peoples, no matter why, or what for.

This happened even before any political divide in this country as we know it today. Back then, it was the right of the white race to do what they wanted to with non-white people. This mindset went on for centuries and then one day it went political. But nothing really changed for non-white people unless you call more oppression or more and harsher punishment a change.

There is nothing written in the United States Constitution about it being unconstitutional to execute or imprison for decades an innocent person. Not as long as that person had what is called a “fair trial” meaning, a trial free from constitutional error. A fair process or proceeding.

This is how this country’s courts and legal proceedings rolled—and rolled they did. Picking up and locking up minority people for anything or nothing and sentencing them to prison, or death with a fair process, free from constitutional error. But these so called “fair processes” weren’t fair at all, especially when district attorneys and police withhold material exculpatory evidence from the defense attorney, jury, judge and everyone else, as we now know that they do on a regular basis in this country, and state.

In 2015, former ninth circuit court of appeals Chief Justice Alex Kozinski, a Ronald Reagan appointee, stated that there is an “epidemic of prosecutorial misconduct” in this state concerning district attorneys withholding material exculpatory evidence from the defense attorneys in order to gain and hold on to convictions that they would not have gotten or maintained if that exculpatory evidence was known about by the defense, or court.

To a large degree DNA testing has proven that this criminal justice system is not as just as it claims to be. Throughout the history of this country we Black people know this truth from experience. The late poet Langston Hughes says more than anyone else can say about the unjust treatment and brutality of Black people in the United States criminal justice system in his poem called Justice:

That Justice is a blind goddess

Is a thing to which we Black are wise:

Her bandage hides two festering sores

That once perhaps were eyes.

Many victims of America’s unjust criminal justice system have learned that “Justice Is Not Blind” as we are led to believe, but, blind folk are the ones who are dispensing justice. People who are blinded by their isms—racism, classism, sexism, religious prejudice, political ideology, and power, among other things that have all come together to work to the detriment of Black and Brown and damn near all poor people.

This is a historical truth and a present-day reality in this country and there must be new avenues opened to combat these injustices. While DNA has most definitely shown this criminal justice system is broken, and it has exonerated many a non-guilty person from prison and death row. More people have been exonerated by other ways than DNA.

The vast majority of the people who have been exonerated by DNA or non-DNA factors had their cases denied throughout the criminal justice court system. The appeals court, and all the judges who looked at their appeals denied them for one reason or another. All the while those people are innocent, and many of whom have spent decades in prison for crimes, including murder, that they did not commit.

This is true in the state of California in death penalty or Capital Cases as they are called, and non-Capital cases. The only thing at this point in time that an inmate in a California prison can do if they are innocent, but their appeals have run out because the courts denied them relief, is to file a writ of habeas corpus using California Senate Bill 1134, a state law that was enacted in 2016. This allows a habeas corpus writ to be filed as a judicial remedy on the basis of “new evidence” that is credible material and presented without substantial delay. It must be of such force and value that it would have more likely than not changed the outcome at trial! That is too high of a standard for the vast majority of inmates to meet.

In my case, Ninth Circuit Court of Appeals Justice M. McKeown stated that she could not grant me relief and not because the claims I raised and proved weren’t true, but because of the 1996 Anti-Terrorism Effective Death Penalty Act and its high standard of proof required by it that an inmate must meet.

These types of U.S. Congress-passed and President Clinton-signed procedural bars are made to uphold convictions despite constitutional violations, and to make it harder for inmates to prove that they have been wrongly convicted of crimes that they did not do.

Whenever criminal cases of any kind are rubberstamped through the criminal justice system just to maintain a conviction, this is an injustice. This is how this system has been allowed to proceed.

And proceed this way it has. This system is not designed to fix itself from within, no system is. It has to be fixed, if fixed is the right word, from without. If this system could fix itself, it would have long ago, if only to show and try to prove that it is not as bad and unjust as statistics have revealed. Experts such as Professor Samuel Gross (University of Michigan, National Registry of Exonerations,) Professor Lara Bazelon (Director of the University of San Francisco Racial Justice Clinic,) Rob Warden and John Seasly (Northwestern Journal of Law and Social Policy, Unrequited Innocence in U.S. Capital Cases: Unintended Consequences of the Fourth Kind,) Robert Dunham (Executive Director, The Death Penalty Information Center,) and many others have said and have proven that the system is unjust.

There must be a better way, and part of that better way is the creation of a state Innocence Commission in California to look at any criminal case where there is a real claim of innocence.

An Innocence Commission should be made up of people from California who are qualified to sit on such a commission. People who are fair-minded, honest, and willing to correct a wrong that may have happened to a human being who was tried, convicted and sent to prison, even to death row, but whose conviction is in doubt, and whose innocence can be proven if given the chance.

It would be up to the Governor to appoint qualified people to this commission, and not just ex-prosecutors or police like who were once only and always appointed to the board of pardons and parole where for a very long time with people like that on the parole board very few if any inmates got parole even though they had clean prison records and did all they could to reform themselves. No, we do not want or need a rubberstamp of the criminal justice system and its failures to acknowledge or address its wrongdoings.

We need a progressive Innocence Commission with progressive people on it from all walks of life, including defense attorneys as well as prosecutors, non-police as well as ex-police, Democrats, Republicans, independents and other types of political parties that are willing to admit that wrongful convictions do take place, as do frame ups by the police, the withholding of material exculpatory evidence by district attorneys and police and every other type of wrong doing that has been proven to have happened by and at the hands of law enforcement and the court system by certain Judges whose political ideology will never let them admit a wrongdoing in their courtroom, or change a wrongful conviction no matter how wrong it is.

The State of California, and the people who live and work within California all deserve, no matter who they are, or their political party, a criminal justice system that will finally live up to its words that justice is blind and truth and justice will be fairly delivered to all.

Asking for, and even demanding for an Innocence Commission in the State of California should not be too much to ask for, when knowing the history of the criminal justice system and its unfairness and unwillingness to fix itself.

Now is the time for us to come together and get an Innocence Commission in California so that we can do our part to fight against wrongful convictions that do happen, and to have a remedy for it when we find out it has happened in a certain case.

Please get involved and make this happen as only you can do!

SCHEERPOST, May 17, 2020

Kevin Cooper is an innocent man on San Quentin’s Death Row in California. He continues to struggle for exoneration and to abolish the death penalty in the whole U.S. Learn more about his case at:

Write to:

Kevin Cooper #C-65304 4-EB-82

San Quentin State Prison

San Quentin, CA 94974